The Civil Procedure Rule Committee (CPRC) has approved amendments to CPR Part 44 and Practice Direction 44 following consideration of the Court of Appeal’s decision in R (Isah) v Secretary of State [2023] EWCA Civ 268.
Background
Ordinarily, a summary assessment of costs is undertaken at the end of a hearing. Practice Direction 44, paragraph 9.7, allows for an assessment at a later date, but requires it to be before the same Judge. In Isah, the Court of Appeal confirmed that the current rules do not permit summary assessments to be carried out by a different judge.
This created difficulties in practice, particularly where:
- the original judge is unavailable;
- the assessment has been adjourned and listing before the same judge is impractical; or
- similar issues arise across multiple hearing.
The proposed amendment
The CPRC agreed to amend the rules to introduce flexibility, and this is now reflected in The Civil Procedure (Amendment No. 2) Rules 2025 allowing the court to give directions for the summary assessment of the costs to be made at a later date by “another judge who could have decided the claim or application” where there is “good reason” for doing so.
Key points include:
- The Committee rejected a higher threshold of “exceptional circumstances”, preferring a test that strikes a balance between flexibility and preventing a shift towards routinely reassigning assessments.
- The Committee reaffirmed the distinction between summary and detailed assessment. Delegating summary assessment to costs officers was considered inappropriate, as it would risk eroding that distinction.
- The Chair stressed that the amendment is not creating a new route for delegation but addressing an inflexibility highlighted by the Court of Appeal’s judgment.
- Where appropriate, the direction for summary assessment at a later date should be given when the substantive decision is made, though the choice of judge does not need to be determined immediately.
This change is due to come into effect on 1 October 2025 along with, subject to finalisation, the proposed changes to PD 44.
The amendment should ease case management difficulties by providing courts with greater flexibility while maintaining the important distinction between summary and detailed assessment. Practitioners should expect that while the power will remain sparingly exercised, it will offer a pragmatic solution where rigid adherence to the same judge requirement would cause delay or injustice.
Bethany Collings is an Associate in Clarion’s Costs and Litigation Funding Team and can be contacted at bethany.collings@clarionsolicitors.com or on 07774 951949.